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High court questions Texas affirmative action plan

WASHINGTON (AP) — Supreme Court justices sharply questioned the University of Texas' use of race in college admissions Wednesday in a case that could lead to new limits on affirmative action.

Abigail Fisher, right, who sued the University of Texas, walks outside the Supreme Court in Washington, Wednesday, Oct. 10, 2012. The Supreme Court is taking up a challenge to a University of Texas program that considers race in some college admissions. The case could produce new limits on affirmative action at universities, or roll it back entirely. (AP Photo/Susan Walsh)

The court heard arguments in a challenge to the program from a white Texan who contends she was discriminated against when the university did not offer her a spot in 2008.

The court's conservatives cast doubt on the program that uses race as one among many factors in admitting about a quarter of the university's incoming freshmen. The liberal justices appeared more supportive of the effort.

Justice Anthony Kennedy, whose vote could be decisive, looked skeptically on Texas' defense of the program. "What you're saying is what counts is race above all," Kennedy said. He has never voted in favor of an affirmative action program but has voiced support for diversity in education.

Twenty-two-year-old Abigail Fisher, the rejected student who sued, was among the hundreds of spectators at the arguments. Also in attendance was retired Justice Sandra Day O'Connor, who wrote the majority opinion in a 2003 case that upheld the use of race in college admissions.

Changes in the court's makeup since then, especially O'Connor's departure, could affect the outcome of the Texas case. Justice Samuel Alito, O'Connor's successor, has voted consistently against racial preferences since he joined the court in 2006 and appears likely to side with Fisher.

Among the liberal justices who looked more favorably on the Texas admissions system was Justice Sonia Sotomayor. She told Bert Rein, Fisher's Washington-based lawyer, that he was looking to "gut" the nine-year-old decision.

Justice Ruth Bader Ginsburg, who joined with O'Connor in the 2003 decision — Grutter v. Bollinger — said, "It seems to me that this program is certainly no more aggressive than the one in Grutter. It's more, in fact, more modest."

The university says the program is necessary to provide the kind of diverse educational experience the high court has previously endorsed. Along with race, the university considers community service, work experience, extracurricular activities, awards and other factors as it seeks to fill out its incoming classes. The bulk of its slots go to students who are admitted based on their high school class rank, without regard to race.